Facts

Parties and procedure: The appellant X. was convicted by the Criminal Court of the Sarine district for assault (art. 134 SCC) to a prison sentence of 22 months, with deduction of pretrial detention, combined with outpatient treatment. The Criminal Appeals Court of the Fribourg Cantonal Court upheld this conviction, reducing the custodial sentence to 6 months, the remainder being suspended subject to conditions (probation period of 4 years, probation assistance, controlled abstinence and outpatient treatment). X. filed an appeal in criminal matters with the Federal Supreme Court, primarily requesting a conviction for simple bodily harm (art. 123 SCC) and full probation, or alternatively, full probation.

Factual background: On 1 October 2005 at around 6:40 a.m., X., accompanied by an accomplice, assaulted Y. without motive. X. admitted to having struck Y. with his fists, feet, a shoe and a glass beer bottle. Y. suffered serious facial injuries (facial fracture with Lefort II type fractures, dental fractures, thoracic contusions) and was hospitalized from 11 to 17 October 2005, with an estimated period of incapacity to work of between six and eight weeks. X. had a blood alcohol level of 2.09 ‰ at the time of his arrest.

Cantonal decisions: The cantonal authorities convicted X. of assault (art. 134 SCC), without being able to determine precisely which blows had caused which injuries, nor to establish X.’s specific intent regarding the injuries sustained by Y. The Appeals Court considered that X. had not demonstrated the inaccuracy of these findings and upheld the conviction for assault.

Considerations

Concurrence of offences and absorption: The Federal Supreme Court recalls that assault (art. 134 SCC) is an endangerment offence, whereas bodily harm (art. 123 SCC) is a result offence. In principle, if an assailant intentionally or negligently causes bodily harm, the result offence absorbs the endangerment offence (ATF 118 IV 227 consid. 5b). Concurrence between art. 134 SCC and art. 123 SCC is only conceivable if a third party was endangered or if the victim only suffered simple injuries despite intense endangerment.

Co-perpetration and eventual intent: The Federal Supreme Court emphasizes that X. and his accomplice must be considered as co-perpetrators, their joint contribution being essential to the commission of the offence. Co-perpetration requires a common decision and a decisive participation, even if the act was not premeditated. As regards the subjective element, eventual intent is sufficient: X. must have envisaged as possible the result of the blows to Y.’s head and accepted it. The circumstances (multiple blows to the head, use of dangerous objects, victim on the ground) make this eventual intent manifest.

Qualification of the injuries: Although the cantonal authorities did not examine X.’s…